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House approves constitutional amendment to let next gov pack the court

Florida legislators took the final step to put an amendment on the November ballot Wednesday that asks voters to decide whether to give Florida’s governor new powers to make prospective appointments to the state Supreme Court.

The proposed constitutional amendment, SJR 1188, was approved by a 74-45 partisan vote in the Florida House following its Senate passage. The amendment will be the third one on the ballot and must be approved by at least 60 percent of voters on Election Day to become law.

Republicans defended the proposal and Democrats opposed it since it means that the next governor will have the power to pick three of the seven justices because of a fluke of timing that requires three of them to retire on the same day the next governor’s term ends, on Jan. 8, 2019. Unlike every recent election year in the last decade, this is the first time legislators have placed only one amendment on the ballot.

Justices are required to retire at age 70, but can continue to serve on the bench until the end of their six-year term. Justices R. Fred Lewis, Barbara Pariente and Peggy Quince — the court’s liberal wing — will all turn 70 some time during the next governor’s term, and their six-year terms will all end on the same day the new governor is inaugurated.

The state Constitution is unclear about whether the incoming or outgoing governor should make the appointment when the vacancy occurs on inauguration day. The proposal is designed to put some certainty into the law by giving governors a “prospective appointment” as part of the state’s merit selection system used for appellate courts.

The proposal, initiated by Sen. Tom Lee, R-Brandon, is necessary to avoid “workload interruptions” after the justices retire, said Rep. Larry Metz, R-Yalaha,. The law requires that the Judicial Nominations Commission has up to 60 days to recommend three candidates for each of the vacancies that occur when the justices retire and then gives the governor 60 days to make a choice.

“We don’t want to have gaps in service,’’ Metz explained.

Democrats suggested that the current system is working fine and is unlikely to result in a constitutional crisis that Republicans warned about.

"Once you know there is agoing to be a vacancy by all means start that judicial nominating process but the person that makes the selection should be the governor who is the governor for that coming term,'' said Rep. Jim Waldman, R-Coconut Creek.

But Rep. Charles McBurney, R-Jacksonville, said "a lame duck is not the same thing as a dead duck" and the governor should have the power to appoint extendfor his entire term.

Metz said the timing is important. “It’s better to be doing this now when we don’t know who the next governor is than to do it when we know what governor will be making the decisions,” he said.

Rep. Jim Boyd, R- Bradenton, said the measure “brings the common sense practices of the private sector to the judicial system" and "will only further respect the integrity of the judicial process.”